Federal Appeals Court Grants Stay on DADT Injunction

In this 2010 file photo, United States Army soldiers with the 4th Brigade Combat Team of the 82nd Airborne Division bow their heads in prayer led by chaplain Andy Taylor of Tulsa, Okla., in the Arghandab Valley of Kandahar province in Afghanistan.

The U.S. Ninth Circuit Court of Appeals issued a temporary stay on the injunction on “Don’t Ask Don’t Tell,” allowing the Pentagon to conduct a second study and turning the spotlight to President Obama’s efforts to repeal the military policy in the U.S. House and Senate.

A day after U.S. District Judge Virginia Phillips rejected the Department of Justice’s arguments, a three-member judiciary panel of the Ninth Circuit Court granted the temporary stay, suspending the order for an immediate DADT repeal.

The Pentagon, which asked for time to conduct a study in the appeal hearing, planned to conduct a second long-range study of the impacts of a possible repeal to be released Dec. 1.

The first study was criticized as disingenuous and misleading after it was leaked to the press in July. The Pentagon has long feared that changes to DADT would result in disorder and “military unreadiness.”

In a letter to Rep. Buck McKeon (R-Calif.) of the House Armed Services Committee, Navy Chief of Operations Adm. Gary Roughead voiced his concern, saying legislative changes at this point, regardless of the precise language used, “may cause confusion on the status of the law in the Fleet and disrupt the review process itself by leading sailors to question whether their input matters.”

The recent rulings by Judge Phillips have already complicated Pentagon’s recruitment efforts. Arms of the military had already begun instructing recruiters to allow openly gay and lesbian applicants after the Pentagon reported it would comply with the court’s decision last week. The Marine Corps, according to reports, had already issued a directive that “homosexual conduct” no longer is a “bar to accession.”

With so much still up in the air, Department of Defense spokeswoman Cynthia Smith warned potential applicants to be aware that the legal stipulations could change.

“The federal government is putting [openly homosexual applicants] in a position where they can be rejected before they ever put on the uniform,” noted Bruce Hausknecht, judicial analyst of Focus on the Family’s action group CitizenLink.

But Hausknecht is more concerned about how a repeal of DADT will hamper military chaplains and Christian soldiers from expressing their faith.

Soldiers, he said, may be disciplined if they express their religious beliefs concerning homosexuality because he believes a permanent injunction will give homosexuality “a moral rubber stamp of approval from the U.S. Government.”

With the injunction suspended, gay rights advocates are now looking to President Obama for a legislative end to DADT.

Obama has made it clear that he wants to repeal DADT but plans to do so legislatively. In a press briefing Tuesday, White House Press Secretary Robert Gibbs said Obama plans to press the U.S. Senate during a lame duck session to pass a defense authorization bill that would put an end to DADT.

“The president believes that the policy will end under his watch precisely because in the defense authorization bill pending in the Senate is a provision that would repeal what the president believes is unjust, what the president believes is discriminatory,” said Gibbs.

Notably, however, the must-pass bill, which authorizes $726 billion in defense spending, failed last month to advance in the Senate after passing in the House.

The defense bill, which traditionally passes with bipartisan support, must now wait to be brought up again following the fall elections for further debate before moving on to the president’s desk. If Democrats lose seats in the elections, however, as many predict they will, repealing the policy could prove even more difficult – if not impossible – in the year to come.